5324 
.L43 



^University, of {Pennsylvania 



publications 

OF THE 

Department of Xaw 



The Modern American Cases Arising 

Out of Trade and Labor 

Disputes 



BY 



WILLIAM DRAPER LEWIS, Ph. D. 



Published by the department of l^w of 
University of Pennsylvania 8 




Class. 
Book. 



IHntversttv. of Pennsylvania 



publications 

OF THE 

department of Xaw 



The Modern American Cases Arising 

Out of Trade and Labor 

Disputes 



BY 

WILLIAM DRAPER LEWIS, Ph. D. 



published by the department of law of 

University of Pennsylvania 

1905 



Qa^Ua, 



THE MODERN AMERICAN CASES ARISING 

OUT OF TRADE AND LABOR 

DISPUTES. 1 

¥ 

A trader or laborer may harm other traders or laborers in 
several ways. If the harm is due to direct violence 2 or 
false statement, the law has no hesitation in holding the 
person responsible liable in damages to the injured person. 
But a man may do harm to another's trade or business, not 
only by violence or misrepresentation, but by merely abstain- 
ing from dealing with him or by inducing his customers 
or employees to leave him or his employer to discharge 
him. The strike, the lockout, and the boycott are the most 
prominent examples of acts of this class producing harm. 

The strike is an agreement between two or more persons 
not to deal in a business way with a third. A labor strike 



1 The English cases are treated by the writer in an article entitled 
" Some Leading English Cases on Trade and Labor Disputes," 51 Am. 
Law Reg. 125, March, 1903. 

2 Under the head of direct violence may be included those cases in 
which a plaintiff has been interrupted in the exercise of his profession 
or business by noisy demonstrations intended to interrupt, but not 
necessarily threatening him with personal violence — as hissing an actor 
at a theatre, as in Gregory v. Duke of Brunswick, 13 L. J. C. P. 34, 1843, 
or frightening wild fowl who were approaching the plaintiff's decoy, 
as in Keeble v. Hickeringill, 11 East. 574, note, and Carrington v. 
Taylor, 11 East. 571, 1809. 



466 TRADE AND LABOR DISPUTES. 

occurs where the employees of a person or corporation leave 
their employment in a body and refuse to return until their 
wishes are complied with. But there is also the employer's 
strike and a trade strike. The employer's strike is usually 
termed a lockout or agreement to black list. Several em- 
ployers agree to discharge their hands until they are willing 
to work on certain terms, or agree not to employ a person 
who as the employee of any one of them has broken a rule 
of conduct which the employers desire their employees to 
observe. The trade strike is where several traders agree 
together to refuse to deal with another trader. 

The boycott is economic pressure brought to bear on 
those who deal, or are about to deal, in a business way with 
a third person to prevent them from dealing with such third 
person. There are always three persons or classes of persons 
in a boycott — the person or persons who persuade, those 
whom they persuade, and the person boycotted. The 
method of persuasion used is always the threat of business 
harm, usually couched in the formula : If you deal with A, 
we won't deal with you. One man may be " persuaded" 
not to deal with another, not only by economic pressure, 
but by violence or the threat of violence to person or 
property. Or, the method of " persuasion" may be by mere 
argument, or by the offer of money or money's worth. 
None of these are true boycotts. As classes of acts which 
interfere in the business relations of others they have not 
received a distinctive name. 

The purpose of this article is to show the development 
in this country of the law of tort as applied to the strike, 
the boycott, and the persuasion of third persons by argu- 
ment or by violence or by the offer of money not to deal 
with another. The method which we shall pursue will be 
to treat the various legal questions in the order in which our 
courts have been called upon to deal with them. 3 

3 As the writer believes that the old common-law action for enticing 
servants has had no influence on the development of the modern law as 
affecting the subject of this article, he has omitted all discussion of the 
few modern cases discussing this action. Some modern cases of this 
class occasionally cited in the trade and labor cases are Haskins v. 
Royster, 70 N. C. 601, 1874 ; Bixby v. Dunlap, $6 N. H. 456, 1876. 



TRADE AND LABOR DISPUTES. 467 

'In 1854 the case of Hunt v. Simonds* came before the 
Supreme Court of Missouri. It raised the question of the 
legality, from the point of view of private law, of what we 
have called the trade strike, or an agreement between two or 
more traders, who have been dealing with a third, to dis- 
continue dealing with him. The plaintiff had been the 
owner and captain of a steamboat. He alleged that the 
defendants, who were the officers of various insurance com- 
panies, combined, confederated, and conspired wilfully and 
maliciously to injure him, and, with the intent of effecting 
their object, refused, without cause, to take any insurance 
upon his boat, whereby he was deprived of all benefit from 
his occupation, and was compelled to sell his boat and aban- 
don his business. The defendants demurred, the court sus- 
tained the demurrer, and the Supreme Court confirmed this 
action. The case stands for the proposition that two or 
more traders, not being under any contract to continue to 
deal with a third trader, may combine to refuse to deal with 
him, for a good reason, a bad reason, or no reason at all, 
without being liable for any harm which may result to such 
third trader. The court rests its decision on two proposi- 
tions : First, that a man has an absolute right to deal or 
not to deal with another as he pleases. 5 Second, that what 
one man has an absolute right to do two or more men have 
a right to "combine" or agree together to do; 6 in other 
words, that in our civil, as distinguished from our criminal 
law, there is no such thing as liability for conspiracy to 
harm unless the harm, considered apart from the conspiracy, 
is a legal injury. This last proposition has been followed 
in a number of cases of the class which we are considering. 7 

19 Mo. 583, 1854. 

" It is obviously the right of every citizen to deal or refuse to deal 
with any other citizen, and no person has ever thought himself entitled 
to complain in a court of justice of a refusal to deal with him, except 
in some cases where, by reason of the public character which the party 
sustains, there rests upon him the legal obligation to deal and contract 
with others." 
• Pages 587, 588. 

' Randall v. Haselton, 94 Mass. 412, 1866 ; Bozven v. Matheson, 96 
Mass. 499, 1867, 502; Van Horn v. Van Horn, 52 N. J. L. 284, 1890, 286; 
Moores v. Bricklayers' Union, 23 Ohio Law Bui. 48, 1890, 53; Delz v. 
Winfree, 80 Tex. 400, 1891, 404 ; Bohn Mnf. Co. v. Hollis, 54 Minn. 223, 



468 TRADE AND LABOR DISPUTES. 

The first proposition assumes that some rights are abso- 
lute; that is, may be exercised under all circumstances and 
from any motive without the actor being liable for the 
resulting harm. From this assumption it does not neces- 
sarily follow that there may not be some rights which are 
not absolute. There may still be acts for the harmful results 
of which the actor may or may not be liable according to 
the circumstances under which, or the motive with which, 
they were performed. The court in this case, however, by 
assuming that if the plaintiff was to recover, the defendant's 
act must be shown to be wrongful, apparently assumes that 
all rights recognized by law are absolute rights. 8 In short, 
the court assumes that acts are either rightful or wrongful 
and only those falling under the latter class can be a ground 
of civil action. 9 The case of Hunt v. Simonds has been 
followed in Bowen v. Matheson 10 and Bohn Manufacturing 
Company v. Hollis} 1 In the latter case the defendants were 

1893, 234 ; Graham v. St. Charles St. Ry. Co., 47 La. Ann. 214, 1895, 216 ; 
Boyer v. Western Union Tel. Co., 124 Fed. 246, 1903, 248. See 
apparently contra Blindell v. Hagan, 54 Fed. 40, 1893, affirmed, sub non 
Hagan v. Blindell, 56 Fed. 696, C. C. A. 1893 ; Elder v. Whitesides, 72 
Fed. 724, 1895. The cases contra arose in the Circuit Court for the 
Eastern District of Louisiana. Compare Boutwell v. Marr, 71 Vt. 1, 
1899, s-. c. ; 42 Atl. 607, 609. In Mapstrick v. Ramge, 9 Neb. 390, 1879, 
a case very badly reported, the court appear to interpret the principle 
that damage, not conspiracy, is the gist of the action where a number 
of persons have conspired to injure another, as meaning that if A et al. 
conspire to harm B and harm results, that B has an action against A 
et al. irrespective of the purpose of A et al. or the method by which the 
harm was inflicted. This amounts to an assertion that all conspiracies 
to harm resulting in harm are actionable. 

8 Note argument 19 Mo. page 586, and the statement, page 589, to the 
effect that " The important allegation, in determining whether this 
action will lie, is that which states the acts of the defendants, which 
were intended to effect their object." 

"This view of legal rights and legal wrongs, which leads to the 
assumption that no man is liable for his acts until they are shown to be 
in themselves wrongful, has been taken in the trade and labor cases : 
By Chapman, J., in Bowen v. Matheson, 96 Mass. 499, 1867, 502, et seq.; 
by Sage, J., in Casey v. Cincinnati Typo. Union, 45 Fed. 135, 1891, 143. 
See also Matthews v. Shankland, 56 N. Y. Supl. 123, 1898, 128. In ac- 
cord with the proposition that one man, irrespective of his purpose, 
has an absolute right to refuse to deal with another, see the language 
used in the following cases: Dels v. Winfree, 80 Tex. 400, 1891, 404; 
Graham v. St. Charles St. Ry. Co., 47 La. Ann. 214, 1895. See also 
cases cited infra, note. But see Mattison v. Lake Shore and M. S. Ry. 
Co., 3 Ohio Dec, Sup. and C. P. 526, 1895. 

10 96 Mass. 499, 1867, discussed infra on another point. 

11 54 Minn. 223, 1893. 



TRADE AND LABOR DISPUTES. 469 

members of an association known as the Northwestern Lum- 
bermen's Association, the membership of which embraced 
about one-half the retail lumber dealers in Iowa, Minne- 
sota, Nebraska, and the Dakotas. They resolved that if 
any wholesale dealer sold directly to a consumer in a terri- 
tory in which a member of the association did business and 
refused on demand to pay to the association a commission of 
ten per cent, on such sale, the secretary should notify each 
member not to deal with said wholesaler, and thereafter any 
member who did deal with him would be expelled from the 
association. The Bohn Manufacturing Company, a whole- 
sale lumber company, sold directly to a consumer against 
the above-mentioned rule and refused to pay the commission 
demanded. They then asked the court to restrain the officers 
of the association from sending out notices to the members 
notifying them not to deal with the plaintiff or any other 
matter that might tend to injure the plaintiff's trade or 
business. The court on appeal dissolved the temporary 
injunction granted, not on the ground that a court of equity 
being unable to act effectively would not act at all, but on 
the broad ground that the defendants in doing what they 
did, though injuring the plaintiff, were acting within their 
legal rights. The opinion of Justice Mitchell in this case 
goes as far as the decision in Hunt v. Simonds in holding 
that a trade strike is legal for any purpose. The facts of the 
two cases, however, may be distinguished. In the Minne- 
sota case, at least, the ultimate purpose of the defendants 
in doing what they did was to advance their own interests 
by keeping the wholesaler out of the retail market, while 
the demurrer in Hunt v. Simonds admits that the purpose 
of the defendants in that case was merely to enjoy the ruin 
of the plaintiff's business. 12 

"Russell v. New York Produce Exchange, 58 N. Y. Supl. 842, 1899, 
is an example of a case belonging to the same class as Bohn Mnf. Co. v. 
Hollis, in which the facts were more strongly in favor of the defendants. 
The members of a stock exchange resolved that they would not allow 
their members to buy or sell on the exchange for any person who was 
guilty of practices which the members of the association regarded as 
inimical to their interests. The officers of the association, acting under 
the rules of the association, posted the plaintiffs on the floor of the 
exchange as having been guilty of the prohibited practices. The court 



470 TRADE AND LABOR DISPUTES. 

In the cases just discussed the defendants refused to deal 
with the plaintiff. In the next case, Orr v. Home Mutual 
Insurance Company, 18 the defendants refused to have any 
business relations with anyone who did business with the 
plaintiff. The plaintiff alleged in his petition that he was a 
master of a steamboat on the Red River, and that the de- 
fendants, certain insurance companies, had maliciously com- 
bined to refuse to insure anything or any steamer on which 
the plaintiff was employed, and that by reason of this action 
on the part of the defendants the owner of the vessel dis- 
charged him. The defendants' contention that the plaintiff's 
petition showed no cause of action w T as sustained by the 
court on the ground that the defendants had the absolute 
right under all circumstances and from whatever motive to 
refuse to insure a boat or its cargo. Bow en v. Mathe- 
son, 14: the Massachusetts decision before mentioned, is in 
accord with this case. The plaintiff kept a seamen's board- 
ing-house. The defendants were also keepers of seamen's 
boarding-houses and members of the " Seamen's Mutual 
Benefit Association." The rules of the association pro- 
vided that the members should use their best endeavors to 
prevent any seaman boarding with them from shipping in 
any vessel where any of the crew were shipped from a house 
not in good standing with the association, and that any 
members of the association knowingly shipping any of their 
boarders on vessels having men shipped from houses not 
in good standing should be fined five dollars for each man 
shipped. The plaintiff alleged that the defendants, unlaw- 
fully and maliciously conspiring to injure him in his busi- 
ness, " took their men out of ships because the plaintiff's 



refused to restrain by injunction this action of the officers of the asso- 
ciation on the ground that it was not for an outsider to complain of the 
rules of the association. It would appear that the case decides that two 
or more persons acting as brokers could agree together that they would 
not represent in transactions with each other certain persons when the 
rules by which the obnoxious persons were determined were primarily 
designed, not for the injury of the persons excluded, but for the benefit 
of the brokers. See, also, Collins v. American News Co., 34 Misc. 260, 
N. Y. Sup. 1901. 

13 12 La Ann. 255, 1857. 

"96 Mass. 409, 1867. 



TRADE AND LABOR DISPUTES. 471 

men were in the same/' and thus prevented him from 
getting seamen as boarders. 15 The defendants demurred, 
and the court sustained the demurrer. The demurrer in 
effect admitted that the defendants for their own private 
good and ends had said to the owners of vessels: "You 
have your choice. Take men from our houses or from the 
plaintiff's house, but you cannot deal with us and with the 
plaintiff." It would also appear that the demurrer admitted 
that the customers of the plaintiff ceased dealing with him 
because of these threats. Here, as in the earlier Louisiana 
case, we have all the elements of a boycott. There was, 
however, no attempt on the part of the defendants to inter- 
fere with any existing contract between the plaintiff and 
his customers. The business or economic pressure was 
brought against those who otherwise would have dealt 
with the plaintiff. On the other hand, the demurrer would 
seem to be an admission that the purpose of the defendants 
was not necessarily their own advancement, but might 
have been a mere desire to harm the plaintiff. The court, 
however, apparently treats the case as involving a discussion 
of the limits of fair trade competition, thereby assuming 
that the defendants were acting for their own interests, and 
not for the purely malicious purpose of injuring the plaintiff. 
The case stands for the proposition that the person boycotted 
has no civil action for the harm done him, at least in the 
case where both plaintiff and defendants are traders, and 
the defendants' motive was self-advancement. Irrespective 
of the decision, the opinion itself, which is written by Justice 
Chapman, is an extreme example of that method of examin- 
ing a doubtful question o£ tort which consists in separating 
each act of the defendant from the surrounding circum- 
stances and the purpose of the actors and asking, in relation 
to an act so separated, " Had the defendant a right to do this 
act?" 16 Furthermore, there is the practical assumption that, 
as I have a right to refuse to have business dealings with 
another, unless I am bound to him by contract, I can place 



Page 502. 

See supra, note 8. 



47 2 TRADE AND LABOR DISPUTES. 

any condition on my dealing with him that I please, provided 
I do not ask him to commit a tort or breach of contract, 
without any possibility of becoming liable to him or any- 
one else. 17 The decision in Bow en v. Matheson has been 
followed in at least two American and one Scottish case. 18 
In the American cases, Macauley v. Tierney and Transpor- 
tation Company v. Standard Oil Company, and in Lord 
Lindley's approval of the Scottish case, in the celebrated 
case of Qninn v. Leathern, the theory given is different 
from that in Bowen v. Matheson. The inference, that as 
I have a right to refuse to have business dealings with 
another, I can therefore place any conditions on dealing 
with him which I see fit, no matter how injurious those 
conditions may be to a third person, without being liable 
to such third person, is denied. It is admitted that a trade 
boycott for a malicious purpose may be actionable, but the 
fact that in the cases cited the boycott was instituted by the 
defendants for their own business advancement is regarded 
as a legal justification for their act. 19 On the other hand, 
in two other American cases the plaintiff has been allowed to 



17 It is interesting to compare with this modern case the old case of the 
Abbot of Lilleshall in Pub. of Sel. Soc. Select Pleas of the Crown, vol. I, 
page 115, a case in the year 1221, where the Abbot brought an action 
against the bailiffs of Shrewsbury because they made a proclamation 
that anyone who sold to the Abbot should forfeit ten shillings. The 
plaintiff was put to his law. 

18 Macauley v. Tierney, 19 R. I. 255, 1895 ; Transportation Co. v. 
Standard Oil Co., 50 W. Va. 611, 1902; Scottish Co-operative Society v. 
Glasgow Fleshers' Asso., 35 Scott, L. R. 645, 1898. The last case was 
approved by Lord Lindley in Quinn v. Leathern (1901), A. C 495, 539. 
The facts of Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. 598, 1899, s. c. 
(1892), A. C. 25, may be said to involve a trade boycott. The plaintiff 
failed to recover. See, however, 51 Am. Law Reg., page 131. 

"The theory of these cases will be discussed in connection with the 
decision of Walker v. Cronin, infra. 

In accordance with the position that a trade boycott for a malicious 
purpose, as for satisfying a grudge against the plaintiff, gives him a 
good cause of action, see International and Great Northern Ry. Co. v. 
Greenwood, 2 Tex. Civ. App. 76, 1893; Graham v. St. Charles St. Ry. 
Co., 47 La. Ann. 214, 1895; Transportation Co. v. Oil Co., 50 W. Va. 
611, 1902; Webb v. Drake, 52 La. Ann. 290, 1899. Contra, Payne v. The 
Western & Atl. Ry. Co., 13 Lea. 507 Tenn., 1884. In Cote v. Murphy, 
159 Pa. 420, 1894, the purpose of the defendants seems to have been 
to punish the plaintiff, who was an employer of labor, for not standing 
by the defendants during a general strike in the trade, but the plaintiff 
failed, in the opinion of the court, to show damage. 



TRADE AND LABOR DISPUTES. 473 

secure an injunction to restrain a trade boycott, though the 
purpose of the defendants was to advance their own business 
interest. In the first of these cases, Jackson v. Stanfield, 20 
the facts are identical with Bohn Manufacturing Company 
v. Hollis 21 except that the action was brought by a con- 
sumer, or rather retailer, of lumber, who was not a member 
of the Lumbermen's Association, against the association 
for threatening the manufacturers with a withdrawal of 
their custom if they sold to the plaintiff. The court held 
that the plaintiff could not only recover for his loss of busi- 
ness, but was entitled to an injunction against the continu- 
ation of the boycott. The case of Walsh v. Association of 
Master Plumbers 22 is identical with Macauley v. Tiemey 
just referred to. Both cases arose out of the attempt of the 
Association of Master Plumbers to drive out of business 
all master plumbers who did not join their association by 
refusing to buy supplies from any manufacturer who sold 
to a master plumber not a member of the association. In 
both cases the plaintiff was a master plumber not a member 
of the association, who because of the boycott was unable to 
obtain plumbing supplies from the manufacturers. As 
stated, the Rhode Island Court came to the conclusion that 
the action of the association was not a civil wrong to the 
plaintiff. The Court of Appeals of Missouri reached an 
opposite conclusion. The result is that at the present time 
there is a conflict of authority in regard to a boycott of one 
trader by several other traders, some cases holding the boy- 
cotters liable for the harm resulting from the boycott, though 
their purpose was self-advancement, others holding that the 
person harmed cannot recover. 

Since the decision in Bowen v. Matheson, the drift of 
authority has been against the extreme position which is 
apparently taken by Justice Chapman in that case — namely, 
that one man may, with a purely malicious desire to harm 
another, say to a third, " If you deal with that other I will 
not deal with you," without being liable to the other for the 



10 137 Ind. 592, 1893. 

"54 Minn. 223, 1893. 

22 97 Mo. App. 280, 1902, s. c, 71 S. W. 455. 



474 TRADE AND LABOR DISPUTES. 

resulting harm. Indeed, Justice Chapman himself in the next 
trade and labor case coming before his court abandons the 
assumption of the absolute right to do an act irrespective of 
its consequence, or the purpose of the actor, on which assump- 
tion his opinion in Bowen v. Matheson appears to have been 
based. 

The case referred to is Carew v. Rutherford. 23 The 
plaintiff was a master stone-cutter. His laborers were mem- 
bers of a union. A rule of this union provided that the master 
stone-cutters should not send their work out of the state. 
The plaintiff violated this rule. The president of the union, 
who was his foreman, came to him and said that the union 
had voted, in view of this violation of its rules, that he should 
pay a fine of five hundred dollars to the union. He refused 
to do this and his men went out on strike. Subsequently the 
president and other members of the union told him that no 
member of their union would be allowed to work in his shop 
if he refused to pay the money demanded. As he had impor- 
tant contracts on hand and unfinished, he paid the money 
demanded to one Wagner, the treasurer of the union. The 
plaintiff sued the defendants, including the president, treas- 
urer, and members of the union, as an unincorporated asso- 
ciation, in contract with an alternative count in tort. The 
trial judge thought that the facts given did not constitute 
a cause of action. On appeal, the count in tort was sus- 
tained. It will be noted that the act of which the plaintiff 
complained was the demand by the defendants that he should 
pay money as a prerequisite to their returning to work. The 
plaintiff was under no obligations to pay the money. The 
defendants did not threaten him with physical harm either to 
his person or his property. The defendants, however, did 
take advantage of the circumstance that the plaintiff was in 
need of men to complete his contracts with third persons, and 
of the fact that their organization included most of the 
skilled workmen in the trade, to bring economic pressure, or 
a threat of practical business loss, unless the money was paid. 
Their purpose, as far as the purpose is made clear by the 

23 106 Mass. i, 1870. 



TRADE AND LABOR DISPUTES. 475 

facts as found by the trial judge, was partly to increase the 
money in the treasury of the association, and partly to punish 
the plaintiff for violating a rule of their association, and 
through such punishment to deter him and others from again 
violating the rule, the rule itself having been adopted because 
the members of the union thought it would advance their in- 
terests as laborers. From the point of view of Chief- Justice 
Chapman, who wrote the opinion, the essential fact making 
the defendants' act illegal was the fact that they had taken 
advantage of the circumstances to force the plaintiff to pay 
them money to avoid a still greater business loss. 24 Under 
this view it may be stated that the court thought that it is 
illegal to obtain money from another, which that other does 
not owe, by a threat of business harm, and the mere fact that 
the threat takes the form of a refusal to work until the 
money is paid, the threatener not being under contract to 
work, is immaterial. The cases in the note are sufficient to 
show that until again discussed and affirmed the case and the 
proposition on which it rests are doubtful. 25 

It is curious to note that the opinion of Justice Chapman 
in Carew v. Rutherford illustrates a radically different way 
of approaching a doubtful question of alleged tort than that 
shown by his opinion in Bowen v. Matheson. Instead of the 

24 Page ii. 

25 The facts in Bohn Manufacturing Co. v. Hollis, 54 Minn. 223, 

1893, which are detailed in the text, supra, show that the court did 
not think it illegal for a number of retail lumber merchants to re- 
fuse to buy lumber from a wholesale merchant until the wholesale 
merchant paid the association a sum of money he did not owe them. 
On the other hand, in Schulten v. Bavarian Brewing Co., 96 Ky. 224, 

1894, it was held that a declaration which stated that the defendants 
refused to sell to the plaintiff beer until he had paid one of their number 
a sum of money, though the declaration alleged harm to the plaintiff's 
business, was only insufficient because the plaintiff did not allege that 
he did not owe the money. Had he so alleged the decision would have 
been in accord with Carew v. Rutherford. The principle that if the 
money is due to one member of an association of business persons the 
members of the association may lawfully agree not to sell to the debtor 
until he pays the debt was applied in Brewster v. Miller's Sons, 19 Ky. 
Law. Rep. 593, 1897. The case of Ryan v. Burger & Hower Brewing 
Co., 13 N. Y. Supl. 660, 1891, in which the facts on which the action is 
based are nearly identical with Schulten v. Bavarian Brewing Co., supra, 
seems to have been decided on a question of misrepresentation. Quare: 
Whether several persons could refuse to furnish A with goods until he 
paid B a debt due B, B having nothing to do with the agreement? 



476 TRADE AND LABOR DISPUTES. 

separation of the act causing the harm from the surrounding 
circumstances of the case with a view of determining its 
inherent legal character, we have an apparently legal act — 
the refusal to work until a sum of money is paid — becoming 
illegal because of the surrounding circumstances. It is per- 
haps needless to point out that the different results reached 
in the two cases were probably due to this difference in the 
method pursued. 26 Again he assumes exactly what in the 
former case he would seem to deny — namely, that a defendant 
is at least to be considered prima facie liable for any harm to 
the plaintiff which he has knowingly caused. After citing 
the early examples given in Bacon's Abridgment of tortious 
interference in business, as where one disturbs my workmen 
with threats of personal injury, or menaces my tenants " per 
quod they depart from their terms," he says : " The illustra- 
tions given in former times relate to such methods of doing 
injury to others as were then practised and to the kinds of 
remedy then existing. But as new methods of doing injury 
to others are invented in modern times, the same principles 
must be applied to them, in order that peaceable citizens may 
be protected from being disturbed in the enjoyment of their 
rights and privileges." 27 

The case of Walker v. Cronin 28 further illustrates and 
explains the theory that a man who knowingly inflicts 
harm on another must at least show some reason why he 
should not be held liable for that harm. There were three 
counts in the plaintiff's declaration. Two were for wil- 
fully persuading those under contract to work for the plain- 
tiff to break their contracts. The court sustains these counts, 
not because of any peculiarity in the relation of master 
and servant, but because a legal right derived from the con- 
tract was alleged to be violated as a result of the defendant's 
act. 29 The plaintiff's counts did not state the method of per- 
suasion used, whether it was by argument, economic pressure, 

28 In note 49, infra, where the method of approaching a question of 
tort followed by Justice Chapman in Carew v. Rutherford produced, 
in a case like Bowen v. Matheson, a result favorable to the plaintiff. 

27 Page II. 

28 107 Mass. 555, 1871. 
39 Page 567. 



TRADE AND LABOR DISPUTES. 477 

or threat of violence. The decision therefore stands for the 
proposition that to wilfully cause another to break an obliga- 
tion to a third person gives the third a right of action, not 
only against the person who broke the contract, but also 
against the person who caused him to do so. This proposi- 
tion, which had in effect been already announced in England 
in the celebrated case of Lumley v. Gye 30 has been applied 
in the American trade and labor cases since Walker v. 
Cronin? x 

In one case, Jersey City Printing Company v. Cassidy, 32 
a court of equity has restrained defendants from in any 
manner persuading a third person to break his contract with 
the plaintiff. 33 This, at least on its face, restrains per- 
suasion by argument. Walker v. Cronin held that such 
persuasion is prima facie a civil wrong, but the wisdom 
of extending the power of a court of equity to restrain 
argument may be seriously doubted. If the method of 
persuasion used to induce the third person to break the 
contract is the offer of money or other economic advantage, 
economic pressure, or violence, the court of equity has with- 
out hesitation issued its restraining order. 34 



30 2 E. and B. 216, 1853. Followed in Bowen v. Hall, L. R., 6 Q. B. D. 
333, 1881, and Tempeton v. Russell (1893), 1 Q. B. 715. 

31 Accord : Doremus v. Hennessy, 176 111. 608, 1898. A futiori a con- 
spiracy to write the officers of a company with whom the plaintiff has a 
contract to induce such officers so to act as to effect a practical breach 
of the contract of the company with the plaintiff is actionable if damage 
to the plaintiff result. Angle v. Chicago and St. Paul Ry. Co., 151 U. 
S. 1, 1893. Compare Gatzow v. Buening, 106 Wis. 1, 1900. 

32 63 N. J. Eq. 759, 1902. 

88 See also the wording of the injunction issued by Justice Holmes in 
Vegelahn v. Guntner, 167 Mass. 92, 1896, 96. 

34 The offer of money or other economic advantage to induce third 
persons to break a contract with the plaintiff was restrained in the fol- 
lowing cases: Lumley v. Wagner, 1 DeG. M. and G. 604, 1852; Amer- 
ican Base Ball Asso. v. Pickett, 8 Pa. C. C. 232, 1890 ; Standard Fashion 
Co. v. Siegel-Cooper Co., 157 N. Y. 60, 1898 ; American Law Book Co. v. 
Ed. Thompson Co., 84 N. Y. Supl. 225, 1903. In the last case cited 
the defendants were restrained from offering to indemnify third 
persons from any action which might be brought by the plaintiff against 
them for breach of contract. To threaten third persons with economic 
pressure — that is, business harm — unless they broke their contracts with 
the plaintiff was restrained in Beattie v. Callanan, 81 N. Y. Supl. 413, 
1903 ; and threats of violence for the same purpose were restrained in 
Knudsen v. Benn, 123 Fed. 636, 1903. 



47§ TRADE AND LABOR DISPUTES. 

In the cases cited the obligation which the defendant per- 
suaded the third person to break was a contract with the 
plaintiff, but Judge Taft, in Toledo, Ann Arbor and North- 
ern Michigan Railroad Company v. Pennsylvania Railroad 
Company?* applied the principle to a case where the obliga- 
tion which the defendant was persuading the third person to 
break was one arising under that clause of the Interstate 
Commerce Act which obliges a carrier to receive freight 
coming from another state delivered to it by another car- 
rier. 36 

The remaining count in Walker v. Cronin raised a more 
difficult question and is treated at greater length by the court. 
It charged that the defendants wilfully and without justi- 
fiable cause persuaded and induced a large number of per- 
sons in the employ of the plaintiffs and others who were 
about to enter their employment to leave and abandon their 
employment. In this count, which is also sustained by the 
court, no contract between the plaintiff and those persuaded 
to leave is mentioned, neither is the method of persuasion 
referred to. We have in the opinion of Justice Wells a 
distinct theory of the proper test of liability in tort for the 
harmful consequences of an act. The theory is that he who 
wilfully acts so as to cause harm to another is liable for that 
harm unless he can show a legal excuse. 37 In the discussion 

85 54 Fed. 730, i8q3- 

86 Compare Toledo A. A. and North Michigan Ry. Co. v. Penna. Ry. 
Co., 54 Fed. 746, 1893. The recent case of Carroll v. Chesapeake and 
Ohio Coal Agency Co., 124 Fed. 305, C. C. A. 1903, is an example of a 
further and perhaps questionable extension of the principle of Lumley 
v. Gye. The plaintiff was a New Jersey corporation. It entered into 
a contract with a coal company of West Virginia by which the coal 
company agreed to mine and furnish coal. The members of a trade 
union, of which some of the defendants were officers, were, so the bill 
alleged, by threats preventing those who were desirous of working for 
the coal company from doing so, and thus prevented the coal company 
from fulfilling its contract with the plaintiff. The court held that the 
plaintiff had on the facts alleged a right to bring the bill because of its 
interest in the contract with the coal company. The case would appear 
to stand for the proposition that if A has a contract with B, any act of 
Cs which prevents B from fulfilling his contract with A is prima facie 
a civil wrong to A. Lumley v. Gye and Walker v. Cronin seem to go 
no further than to assert that he who for the purpose of harm to A 
persuades or forces B to do an act which is a civil wrong to A is liable 
to A for the harm resulting from B's act. 

* T 107 Mass., page 562. 



TRADE AND LABOR DISPUTES. 479 

of this count no mention is made of the fact that the persons 
persuaded could be considered as the servants of the plain- 
tiff. The case, therefore, may be said to stand for the broad 
proposition that he who persuades one person not to deal 
with another is liable to that other if damage result unless 
he can show a legal excuse. The proposition as stated has 
been followed in several trade and labor cases. 38 

The way in which the case of Walker v. Cronin was pre- 
sented to the court, a demurrer to the allegation that the 
persuasion was malicious, prevented the decision throwing 
light on the possible character of a legal justification for 
such persuasion. The case of the Johnston Harvester Com- 
pany v. Meinhardt* 9 however, suggests circumstances which 
would give the defendant such a justification. In that case 
the defendants had been employed by the plaintiff company. 
They struck on account of a reduction in the rate of wages. 
The defendants, though they did not use any violence, per- 
suaded others from taking their places, and in many cases, 
in addition to argument, paid the return railway expenses 
of those who had come from a distance to seek employment 
with the plaintiff. The plaintiff asked for an injunction to 
restrain the defendants from interfering with the business of 
the company. The bill was dismissed, apparently on the 
ground that the defendants were acting within their legal 
rights. The case, therefore, in effect holds that one or more 
persons, who desire to secure employment with a third, may 
persuade by argument or the offer of money others from 
taking employment with him without being liable for such 
persuasion. The right of strikers in such cases to use peace- 
ful persuasion by argument has been repeatedly affirmed. 40 



88 Dickson v. Dickson, 33 La. Ann. 1262, 1881 ; Dels v. Winfree, 80 
Tex. 400, 1891 ; Olive v. Van Patten, 7 Tex. Civ. App. 630, 1894; Matti- 
son v. Lake Shore and M. S. Ry. Co., 3 Ohio Sup. and C P. Decs. 526, 
1895; Graham v. St. Charles St. R. R. Co., 47 La. Ann. 20. 1895, 217; 
Ertz v. Produce Exchange, 79 Minn. 140, 1900; Moran v. Dunphy, 177 
Mass. 485, 1901. Compare further in accord, Thomas v. Cincinnati, 
N. O. and T. P. Ry. Co., 62 Fed. 803, 1894. 

39 60 How. Pr., 168 N. Y. 1880. 

40 Rogers v. Evarts, 17 N. Y. Supl. 264, 1891 (but see the affirming 
opinion in 144 N. Y. 189, 1894) ; Sinsheimer v. United Garment Workers, 
77 Hun. 215, N. Y. Sup., 1894; Standard Tube and Forkside Co. Works 



480 TRADE AND LABOR DISPUTES. 

Their right to pay the return fare of those coming from a 
distance to take their former places, though doubted in one 
case, has also been recognized. 41 In accord with these cases 
it has been held in Pennsylvania that an employer may send 
the names of persons who have left his employ on strike 
to other employers, requesting them not to employ the 
strikers until the trouble is settled, without being liable to 
the strikers for the consequent loss of employment. 42 Again, 
it has been held that an association of jobbers may persuade 
by argument manufacturers to sell only to those jobbers and 
retailers who will agree to maintain, in sales to the retailers 
and consumers, the price designated by the manufacturers, 
the whole trade having been much disturbed by the cutting 
of prices by jobbers and retailers. 43 

If the case of the Johnson Harvester Company illus- 
trates what would be a sufficient legal excuse for persuading 
a third person to leave the employment or refrain from 
entering the employment of another, that of Thomas v. Cin- 
cinnati, New Orleans and Texas Pacific Railway Com- 
pany 44 illustrates circumstances which were regarded as 
negativing any defence for such persuasion which the 



v. International Union of Bicycle Workers, 9 Ohio Dec. 692, 1899; 
Kerbs v. Rosenstein, 67 N. Y. Supl. 385, 1900; Foster v. Retail Clerks' 
International Protective Association, 78 N. Y. Supl. 860, 1902; W. 
& A. Fletcher Co. v. International Ass'n of Machinists, 55 A. 
1077, N. J. 1903. Compare in accord dicta in the following cases: 
United States v. Kane, 23 Fed. 748, 1885, 750; Consolidated Steel and 
Wire Co. v. Murray, 80 Fed. 811, 1897, 828; Plant v. Woods, 176 Mass. 
496, 1900 ; Erdman v. Mitchell, 207 Pa. 79, 1903, 92. 

41 Rogers v. Evarts, 17 N. Y. Supl. 264, 1891 ; Cumberland Glass Mnf. 
Co. v. Glass Bottle-Blowers' Asso., 59 N. J. Eq. 49, 1899, 58. 

In Frank v. Herold, 63 N. J. Eq. 443, 1902, 445, the defendants were 
restrained " from using the money of the (defendant) association or 
any other money for the purpose of preventing further employees of 
the complainants from returning to their work and paying money to 
such employees to induce them to leave." The decision is apparently 
due to a novel application of the doctrine of liability for enticing 
servants which is declared to be in force in New Jersey. The doctrine 
grew up as a result of one employer enticing the servants of another 
away from him. The fact that the person enticing needed a servant 
was no excuse. Here the enticer is another servant, and the purpose 
of his enticement is to himself obtain service with the plaintiff. 

42 Bradley v. Pierson, 148 Pa. 502, 1892. 

43 Park & Sons' Co. v. National Wholesale Druggists' Association, 
175 N. Y. 1, 1903, aff. 64 N. Y. Supl. 276. 

44 62 Fed. 803, 1894. 



TRADE AND LABOR DISPUTES. 48 1 

defendants might otherwise have had. In that case the 
defendants, who were officers of a union, were attempting 
to persuade the employees of the plaintiff to leave his employ 
so that the plaintiff could not fulfil his contract with the 
Pullman Company. Judge Taft regarded the persuasion, 
under the circumstances, as a civil wrong to the plaintiff. 
Another and perhaps more doubtful example of a failure to 
show a legal excuse for the persuasion of the employees of 
another to strike is found in the case of the Old Dominion 
Steamship Company v. McKenna* 5 where the court held 
it a civil wrong to the plaintiffs for the defendants, the 
officers of a union, to call the plaintiffs' employees out on 
strike to assist the striking employees of the plaintiffs in 
another state, the persons ordered to leave being satisfied 
with their own terms of employment. If this decision is 
not to be regarded as contra to that of the Johnson Har- 
vester Company, it is because the law regards one who inter- 
feres in the business relations of a man and his employer 
for his own benefit more leniently than when he interferes 
for the benefit of some third person. 

The cases just discussed raise the question whether one 
person may interfere with another's business by persuad- 
ing by argument and offers of money his employees to 
leave him without being liable to that other for the harm 
which his persuasion has caused ? The case of Heywood v. 
Tillson, 46 which came before the Supreme Court of Maine 
in 1883, was the first to raise the question whether an 
employer may, by his rules of employment, dictate the 
relations between his employees and third persons without 
becoming liable for the harm to such third person which is 
the natural result of the rules which he has prescribed for 
his employees. In the case referred to the plaintiff owned 
a house on an island. This island was the property of 
the defendant, who operated stone quarries. One of the 
employees of the defendant occupied the plaintiff's house and 
paid him rent. Without violating any contract with the 



30 Fed. 48, 1887. 
75 Me. 225, 1883. 



482 TRADE AND LABOR DISPUTES. 

plaintiff the occupier could leave the house at any time. The 
defendant told the occupier that if he continued to occupy 
the plaintiff's house he would discharge him. In conse- 
quence of this threat the occupier left the plaintiff's house 
and the plaintiff could not, owing to the fact that the plain- 
tiff was the sole employer of labor on the island, secure 
another tenant. The plaintiff sued at law to recover dam- 
ages. The court, though there are three opinions, found 
unanimously for the defendant. The case, like Bowen v. 
Matheson, is really a case of boycott. Economic pressure 
— the threat of discharge — had been brought to bear by 
the defendant on third persons, his employees, to make such 
third persons act in a way harmful to the plaintiff. It is 
also a trade boycott in the sense that it is a boycott of one 
trader by another trader. It differs, however, from Bowen 
v. Matheson in that the persons against whom the pressure 
is brought are employees of the defendant, not merely per- 
sons with whom he deals as a trader. The case stands for 
the proposition that this kind of a trade boycott is legal. 
Each of the opinions places the decision on the ground 
that, irrespective of the plaintiff's motive or purpose, as 
an employer he had an absolute right to prescribe any rules 
he saw fit in regard to the persons whom he employed. This 
broad proposition would at first seem in conflict with the 
assumption in Walker v. Cronin, that he who wilfully acts 
so as to harm another is liable for that harm unless he has 
a legal excuse. It may be asked, If in Heywood v. Tillson 
the plaintiff acts as he did, not from a desire to improve the 
morals or efficiency of his employees, but from a wanton 
desire to harm the plaintiff, where is his excuse? The 
answer is, that perhaps in some cases the excuse may lie in 
the absolute right of the defendant to do what he has done, 
meaning by "absolute right" the right to do the act under all 
circumstances and from whatever motive without being liable 
to anyone for the harm naturally resulting. The possibility 
of the existence of such absolute rights is admitted by Justice 
Wells in Walker v. Cronin. 47 It cannot be denied, however, 

47 107 Mass. 564. 



TRADE AND LABOR DISPUTES. 483 

that the spirit of the opinions in Heywood v. Tillson in their 
emphasis on absolute right is against that of Justice Wells 
in the Massachusetts case, with his emphasis on the defend- 
ant's liability, when he has wilfully caused the harm of 
which the plaintiff complains, unless he shows a legal excuse. 
The case of Heywood v. Tillson has been followed in Tennes- 
see in Payne v. Western and Atlantic Railroad Company r. 48 
In this case the question was the sufficiency of a declaration 
stating that the plaintiff was the owner of a store doing a 
good business, and the defendants, maliciously conspiring and 
confederating together, out of malice, ill-will, and wicked feel- 
ing, to break up, injure, damage, and ruin the plaintiff in his 
business, caused to be published an order that any employee 
who traded with the plaintiff would be discharged. The 
court sustained the demurrer. Again the absolute right of 
the defendant to do what he did irrespective of its conse- 
quences to the plaintiff is emphasized. " Men must be left," 
says Judge Ingersoll, " without interference to discharge or 
retain employees at will for good cause or for no cause, or 
even for a bad cause, without thereby being guilty of an 
unlawful act per se." 49 A demurrer to a practically iden- 
tical statement was, however, overruled by the Texas Court 
of Civil Appeal 50 and by the Supreme Court of Louisiana. 51 
That an employer may make rules for the guidance of his 
employees where such rules have some relation to the pos- 
sible improvement of their service to him, even though 
such rules adversely affect the business of third persons, 
without being liable to such third persons, can hardly be 
questioned. The Texas and Louisiana cases do not throw 
any doubt on this. The Texas court expressly points out 
that " the petition excludes the idea that the action com- 
plained of was taken for any legitimate purpose." 52 But 
the absolute right of an employer to influence, through his 



48 13 Lea. 507, Tenn., 1884. 
48 Page 508. 

B0 International and Great Northern R. R. Co. v. Greenwood, 2 Texas 
Civ. App. 76, 1893. 
01 Graham v. St. Charles Street R. R. Co., 47 La. Ann. 214, 1895. 
82 Page 81. 



484 TRADE AND LABOR DISPUTES. 

rules of employment, the action of his employees towards 
third persons may be regarded as open to doubt. 

It is interesting to note that the earliest trade and labor 
cases in this country are not cases in which the defendants 
are alleged by the plaintiff to have used violence to prevent 
third persons from working for him or from becoming his 
customers. That violence to a man's employees or customers 
for the purpose of driving them away from him gives him a 
good cause of action has long been admitted. In the case of 
Garrett v. Taylor?* a case decided in 1620, it was held that 
a stonemason could bring an action against one who drove 
away his workmen by threats of violence. Lord Holt as 
early as 1707, in the case of Keeble v. Hie kerin gill, 5 * says: 
" But suppose, Mr. Hickeringill, that if one should lie in the 
way with guns, and fright the boys from going to school, 
and their parents would not let them go thither, sure that 
schoolmaster might have an action for the loss of his schol- 
ars." 55 The right of the plaintiff in such cases does not arise 
from the loss of the services of the servant, but from the 
obstruction to the business. That the defendant injured the 
plaintiff's employee is not enough. He must have known he 
was the plaintiff's employee and injured him for the purpose 
of annoying the plaintiff. 56 The judges in the recent cases 
arising out of controversies between capital and labor, where 
the defendants used violence or the threat of violence to the 
employees or customers of the plaintiff, usually assume the 
liability of the defendants, the opinions merely dealing with 
the propriety of the equitable remedy of injunction. The 
earliest case, however, United States v. Kane, 57 came before 
the court, not as an original bill for an injunction, but on the 
motion of a receiver of a railroad appointed by the court to 
commit the defendants for contempt of court in hindering 
the operation of the road by persuading the employees of the 

63 Croke, James, 567, 1620. 

M n East. 574, note 1. 

55 He cites several cases from the Year Books in support of the asser- 
tion that "Action upon the case lies against one that shall by threats 
fright away his tenants at will." 9 H. 7, 8 appears to support this asser- 
tion. See also the writ given Rostal, 662. 

68 Taylor v. Neri, 1 Esp. 386, 1795. 

67 23 Fed. 748, 1885. 



TRADE AND LABOR DISPUTES. 485 

receiver through threats of violence not to obey his, the 
receiver's, orders in reference to running engines. Justice 
Brewer committed the defendants to jail. The case stands 
for the proposition that where a railroad or other property- 
is in the custody of a receiver appointed by the court it is a 
contempt of court to do any act which would be tortious if 
the receiver had been the owner of the property, provided the 
act interrupts the receiver in his management of the prop- 
erty. An action similar to that taken by Justice Brewer in 
this case was taken by him in the case of In re Doolittle, 58 
occurring about the same time. Similar commitments for 
contempt have since been made in at least two cases. 59 No 
case has thrown any doubt on the correctness of the pro- 
cedure. It certainly may be defended as a logical applica- 
tion of the old English Chancery practice of committing any- 
one for contempt who married a ward of Chancery without 
the consent of the Chancellor. At the same time the obstruc- 
tion of a servant of an officer of a court, not in the presence of 
the court, in carrying out an order not of the court but of the 
officer in discharging his duty to the court, can never be more 
than constructively a contempt of the court itself. In view 
of the great amount of property which is under the control 
of receivers, the case of United States v. Kane was a vast 
practical extension of the field of possible constructive con- 
tempts. The writer cannot but feel that, in view of the right 
of a receiver, situated as the receiver in United States v. 
Kane, to apply for an injunction to restrain tortious inter- 
ference with his employees while in the discharge of their 
duties, that it is an unnecessary extension, fraught with pos- 
sibilities of mischief. 

The question whether a court of equity will, at the instance 
of an employer, restrain outsiders from trespassing on his 
property for the purpose of intimidating his workmen, first 
arose in 1887 in the case of New York, Lake Erie and 
Western Railroad Company v. Wenger. 60 The equitable 



68 23 Fed. 544, 1885. 

89 In re Wabash R. Co., 24 Fed. 217, 1885 ; Thomas v. Cincinnati, N. O. 
and T. P. Ry. Co., 62 Fed. 803, 1894. 
80 9 Ohio Dec. Rept. 815, 1887. 



486 TRADE AND LABOR DISPUTES. 

jurisdiction was affirmed. The next year the Supreme Court 
of Massachusetts, in Sherry v. Perkins? 1 followed the de- 
cision if not the reasoning of Vice-Chancellor Malins in the 
English case of Springhead Company v. Riley? 2 and re- 
strained the publication of notices and banners, not in them- 
selves libellous, but which were part of a scheme through 
threats of violence to persuade third persons from seeking 
employment with the plaintiff. The same year, in Pennsyl- 
vania, in the case of Brace Brothers v. Evans, QZ the court 
issued an injunction to restrain the defendant from inter- 
rupting the plaintiffs' business by persistently annoying and 
intimidating their customers. These decisions have since 
been followed in a large number of cases, and the jurisdiction 
of a court of equity to restrain all forms of violence or 
threats of violence to a person's employees or customers is 
now as well settled as the fact that such violence is a civil 
wrong to the plaintiff. 64 The objection often made in these 
cases, that violence is a crime and a court of equity has no 



61 147 Mass. 212, 1888. 

62 L. R. 6 Eq. Cas. 551, 1868. 

63 18 Pitts. L. J. N. S. 399, 1888. 

64 See Cceur d'Alene Consolidated Mining Co. v. Miners' Union, 51 
Fed. 260, 1892; Murdock v. Walker, 152 Pa. 595, 1893; Blindell v. 
Hagan, 54 Fed. 40, 1893 ; Lake Erie and W. Ry. Co. v. Bailey, 61 Fed. 
494, 1893; Wick China Co. v. Brown, 164 Pa. 449, 1894; Davis v. Zim- 
merman, 91 Hun. 489, N. Y. Sup. 1895 ; Hamilton-Brown Shoe Co. v. 
Saxey, 131 Mo. 212, 1895; Vegelahn v. Guntner, 167 Mass. 92, 1896; 
Mackall v. Ratchford, 82 Fed. 41, 1897; Cook v. Dolan, 6 Dist. R. 524 
Pa. C. P., 1897; O'Neil v. Behanna, 182 Pa. 238, 1897; American Steel 
and Wire Co. v. Wire Drawers' and Die Makers' Union, 90 Fed. 608, 
1898, 617, 618; Beck v. Railway Teamsters' Union, 42 L. R. A. 407, 
Mich., 1898, 419; Cumberland Glass Mnf. Co. v. Glass Bottle-Blowers? 
Asso., 59 N. J. Eq. 49, 1899; Otis Steel Co. v. Local Union, no Fed. 
698, 1 901 ; Southern Ry. Co. v. Machinists' Local Union, in Fed. 49, 
1901, 58; Allis Chalmers Co. v. Reliable Lodge, in Fed. 264, 1901 ; 
Reinecke Coal Min. Co. v. Wood, 112 Fed. 477, 1901 ; Herzog v. Fitz- 
gerald, 74 N. Y. App. no, 1902; Beaton v. Tarrant, 102 111. App. 124, 
1902; United States ex rel. Guaranty Trust Co. v. Haggerty, 116 Fed. 
510, 1902; Ex parte Richards, 117 Fed. 658, 1902; Union Pac. Ry. Co. v. 
Ruef, 120 Fed. 119, 1902, 129; Frank v. Her old, 63 N. J. Eq. 443, 1902, 
445 ; Jersey City Printing Co. v. Cassidy, 53 Atl. 230 N. J., 1902 ; W. P. 
Davis Mach. Co. v. Robinson, 84 N. Y. Supl. 837, 1903 ; Christensen v. 
Kellogg Switchboard and Supply Co., no 111. App. 61, 1903; Horse- 
shoers' Protective Asso. v. Quinlivan, 83 N. Y. App. 459, 1903 ; W. & A. 
Fletcher Co. v. International Asso. of Machinists, 55 A. 1077, N. J. Eq., 
1903; Underhill v. Murphy, 78 S. W. 482, Ky., 1904. 



TRADE AND LABOR DISPUTES. 487 

jurisdiction to restrain a crime, has been either disregarded, 
or met with the reply that equity takes jurisdiction, not be- 
cause the act is a crime, but in spite of it, to protect property. 
To the constitutional objection that the injunction deprives 
the alleged criminal of a trial by jury it has been replied 
that if the violence is committed after notice of the injunc- 
tion, the defendant is not put in prison for the crime, but 
for contempt of the order of the court, and that to deprive 
the court on constitutional grounds of the right to protect 
property by injunction where the wrongful act restrained 
was a crime, would be to assert that a man had a constitu- 



In Ex parte Haggerty, 124 Fed. 441, 1902, the court thought that a 
mortgagee of the mining plant of the employer had sufficient interest to 
file the bill. Sed quare if physical damage was not threatened to the 
property. 

In Beck v. Teamsters' Protective Union, 118 Mich. 497, 1898, the 
defendants, as part of a scheme to intimidate the customers of the 
plaintiff, issued certain written statements, which statements were also 
libels on the plaintiff. The court restrained the publication. See page 
527. In this case, as in several other cases, the court of equity restrains 
a written publication. It has frequently been objected that this is 
beyond the jurisdiction of the Court of Chancery. That equity has not 
power, unless the power is, as in England under the Judicature Act, 
expressly conferred by statute, to restrain a libel is admitted. But a 
single act, like publishing to the world a written or printed sentence, 
may cause harm in several different ways, and each way in which the 
act causes harm may be a distinct tort. Thus the writing in Beck v. 
Teamsters' Protective Union has a libel in that by false statements it 
held the plaintiff up to the contempt of mankind. But the publication 
was so worded that it also intimated to those who read it that the 
publishers would see to it that harm would result to those who dealt 
with the plaintiff. In short, the act of publication was an act in further- 
ance of a boycott or illegal interference between the plaintiff and those 
with whom he dealt. Equity had jurisdiction to restrain the illegal 
interference in business, but no jurisdiction to restrain the libel. In 
restraining the publication the court takes the position that where an 
act amounts to a tort which equity has jurisdiction to restrain, the mere 
fact that the act is also a libel over which equity has no jurisdiction does 
not deprive equity of its jurisdiction. This position was not new. It 
had already been taken in Sherry v. Perkins, 147 Mass. 212, 1888, 214; 
Casey v. Cincinnati Typo. Union, 45 Fed. 135, 1891, 144, 145; Cceur 
d'Alene Consolidated Mining Co. v. Miners' Union, 51 Fed. 260, 1892, 
267. Compare Emack v. Kane, 34 Fed. 46, 1888, 50. 

It has been held, however, that in order to secure the injunction the 
plaintiff must be a trader, and that a beneficial society has not sufficient 
interest in its employees to have them protected by an injunction from 
threats of physical harm: Atkins v. W. & A. Fletcher Co., 55 A. 1074, 
N. J. 1903. Sed quare. Compare dissenting opinion of Ingraham, J., 
in Horseshoers' Protective Asso. v. Quinlivan, 83 N. Y. App. 439, 1903, 
464, and the decision in Snow v. Wheeler, 113 Mass. 179, 1873. 



488 TRADE AND LABOR DISPUTES. 

tional right to commit a crime in order that he might enjoy 
the inestimable privilege of trial by jury. 65 

In Bowen v. Matheson 66 the Supreme Court of Massa- 
chusetts, as we have already seen, held that no action lay for 
harm the result of a boycott. In that case, however, the boy- 
cott was instituted by the plaintiffs' rivals in trade for the 
purpose of advancing their trade at the expense of the defend- 
ants. In 1890 the first boycott case in which the defendants 
were laborers and ex-employees of the plaintiff and the 
friends of such employees came before Judge Taft, who 
was then sitting in the Superior Court of Cincinnati. The 
case is that of Moores v. The Bricklayers' Union. 61 The 
defendants, who were bricklayers, were members of a union, 
one of the objects of which was the improvement of their con- 
dition by united action on the subject of wages. The union 
requested the plaintiffs, who were contracting bricklayers, 
to pay a fine imposed by the union upon one of their em- 
ployees who was a member of the union, and to reinstate an 
apprentice who had left, and discharge another apprentice. 
The plaintiffs refused. The defendants sent letters to the 
plaintiffs' customers, saying that members of the union would 
not work on material supplied by the plaintiffs. The threat 
was effective. Judge Taft held the defendants' acts illegal, 
approaching the subject from the same general point of view 
as Walker v. Cronin. The boycott harmed the plaintiffs and 
the defendants had in their motive or purpose no just cause 
or excuse. The case decides that a boycott for the purpose 
of punishing an employer for not obeying a rule of a union, 
and through that punishment detef other employers from 
violating the rule, is illegal and actionable if harm results. 
The case was a case at law. The more recent English cases 



65 For a full discussion of this question see Hamilton-Brown Shoe Co. 
v. Saxey, 131 Mo. 212, 1895, 220. Compare, in accord, the opinion of 
Beatty, J., in Coeur d'Alene Consolidated Mining Co. v. Miners' Union, 
51 Fed. 260, 1892, 264-5; of Wood, J., in United States v. Debs, 64 Fed. 
724, 1894; of Brewer, J., in In re Debs, 158 U. S. 564, 1894, 593-4. See 
also Toledo A. A. and N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730, 
1893, 739; Lake Erie and Western Ry. Co. v. Bailey, 61 Fed. 494, 1893; 
Consolidated Steel and Wire Co. v. Murray, 80 Fed. 811, 1897, 827. 

68 96 Mass. 409, 1867. 

87 23 Ohio Wk. Bui. 48, 1890. 



TRADE AND LABOR DISPUTES. 489 

of Temperton v. Russell 67a and Quinn v. Leathern 68 are 
similar, and the decisions are in accord with Judge Taft's 
decision. 

In the following year another case involving the legality 
of a boycott came before the Federal Court in Cincinnati. 
This is the case of Casey v. Cincinnati Typographical 
Union. 69 The plaintiff, the owner of a newspaper, refused 
to unionize his office. The defendants, who were officers 
of the union, sent letters to those who advertised in the plain- 
tiff's paper, warning the advertiser that if they continued 
their advertisements in the paper the writers would induce 
all persons connected with organized labor to cease to deal 
with them. The threat was effective. The court issued an 
injunction against the continued circulation of the circulars. 
The case not only stands for the proposition that an illegal 
boycott can be restrained by a court of equity, but that the 
desire of a union to harm an employer of labor because he 
has refused to enter into direct business relations with it, is 
no excuse for persuading by means of threat of business 
harm the employer's customers to leave him. Judge Sage 
in his opinion goes further than this, practically taking the 
position that all boycotts are illegal irrespective of the purpose 
of the defendants. He says : " Instead of fair although 
sharp and bitter competition, as is contended by counsel, it 
was an attempt by coercion to destroy all competition affect- 
ing the union, * * * and allow it to regulate prices 
for him, and determine whom he should employ, and whom 
discharge." 70 The case of Casey v. Cincinnati Typographical 
Union has been followed in two cases presenting identical 
facts, Barr v. Essex Trades Council, 71 and Mathews v. 



67a (1893) 1 Q. B. 715. 

68 (1901) A. C. 495. This case differs slightly from any other case on 
either side of the Atlantic. The economic pressure used was the threat 
to withdraw from the service of the customers of the plaintiff if those 
customers continued to deal with the plaintiff. In the other cases the 
defendants were customers of the customers of the plaintiff, not 
employees of the customers of the plaintiff. 

69 45 Fed. 135, 1891. 

70 Page 143. 

71 53 N. J. Eq. 101, 1894. 



49° TRADE AND LABOR DISPUTES. 

Shankland. 72 In the former case the theory of injury with- 
out excuse is emphasized. 73 In Matthews v. Shankland, as 
in Casey v. The Cincinnati Typographical Union, the ele- 
ment of coercion in the act itself, the boycott or attempt to 
bring economic pressure on third persons, seems to have 
been, in the opinion of the court, the essence of the offence. 74 
Another boycott case is Hopkins v. Oxley Stave Co. 75 The 
plaintiff company was engaged in making barrels and casks. 
They introduced into their establishment a new hooping 
machine, which apparently enabled them to do away with a 
number of their employees. These employees were members 
of a union known as the Coopers' International Union of 
North America. There was a certain affiliation between this 
union and other unions, members of what was known as the 
Trades Assembly of Kansas City. Representatives of these 
bodies notified the plaintiff company that they would estab- 
lish a boycott against the company if they continued to use 
the hooping machine, and in the prosecution of this boycott 
would notify all persons using the plaintiffs' barrels and 
casks that the members of the unions, consisting of a large 
number of persons in all parts of the United States, would 
refuse to buy any goods packed in barrels or casks made by 
the company. The plaintiffs asked and obtained an injunc- 
tion restraining the defendants, the officers of the associations, 
putting in force this threatened boycott. The illegality of the 
contemplated acts, in the mind of Judge Thayer, who deliv- 
ered the opinion, is primarily the unlawful interference in 
the plaintiffs' right to conduct their business as they see fit, 
and the unlawfulness of the interference depends, as in 

72 56 N. Y. Supl. 123, 1898. 

See also Gray v. Building Trades Council, 97 N. W. 663, Minn., 1903, 
for a case in which the defendants instituted a boycott against the 
plaintiff for the apparent purpose of punishing the plaintiff for not run- 
ning his business hi the way desired by a union of employees of the 
trade in which the plaintiff was engaged. The boycott was restrained. 
In accord : Martin v. McFall, 55 A. 465, N. J., 1903. 

"Pages 117, 118. 

74 Page 128. In Longshore Printing Co. v. Howell, 26 Ore. 527, 1894, 
an injunction to restrain an alleged boycott similar to that in Casey v. 
Cincinnati Typ. Union was denied because the facts failed to show 
such a persistent persecution of the plaintiff as to warrant an injunction. 

"83 Fed. 912, C. C. A., 1897, aff. Oxley Stave Co. v. Coopers' Int. 
Union, 72 Fed. 695, 1896. 



TRADE AND LABOR DISPUTES. 49 1 

Casey v. Typographical Union, on the element of coercion. 
" The customers of the plaintiffs are," he says, " compelled 
to surrender their freedom of action." The dissent of Judge 
Caldwell, the only dissent in what we may call labor boycott 
cases, is based on the opinion that as each of the members of 
the defendant associations had a right to deal or not to deal 
with whom they chose, they had a right to refuse to deal 
with the plaintiffs' customers because they used the plaintiffs' 
barrels, and that there was not a conspiracy, because there 
was not an agreement among the defendants to do an unlaw- 
ful act. Under the facts of the case we may regard the court 
as at least deciding that defendants cannot escape liability 
for the harm resulting from their boycott of the plaintiff by 
showing that they are members of a union and that their 
purpose in instituting the boycott was to compel the plaintiff 
to refrain from adopting a particular machine which they, 
the defendants, believed to be inimical to the interests of the 
plaintiffs' employees. 

Comparing these labor boycott cases with the trade boy- 
cott cases, we find that the question whether a boycott of 
one trader by rival traders is legal is a question in which 
there is a conflict of authority, but a boycott of a trader 
by laborers or others who are not rival traders has in- 
variably been held illegal. The same line of distinction has 
been followed in England. 76 The only justification for the 
distinction lies in the fact that in the labor boycott cases 
the connection between the acts of the defendants and their 
own advancement is sometimes one degree more remote than 
in the boycott by rival traders. In the trade cases the imme- 
diate purpose of the defendants is usually to establish a 
monopoly through which their own economic advancement is 
to be secured. In the labor cases the immediate purpose is 

76 Compare Temperton v. Russell (1893), 1 Q. B. 715, a boycott by 
laborers, with Mogul Steamship Co. v. McGregor, 23 Q. B. 598, aff. in 
(1892) A. C. 25, where the defendants, being rival traders of the plain- 
tiffs, refused to take freight from shipping agents who dealt with the 
plaintiffs. This part of the case is not discussed by the judges. It is 
assumed that the plaintiffs are without remedy for the harm resulting 
from such acts. See also in accord Scottish Co-operative Society v. 
Glasgow Fleshers' Association, 35 Sc. L. R. 645, 1898, and opinion of 
Lord Lindley in Quinn v. Leathern (1901), A. C. 495, page 539. 



492 TRADE AND LABOR DISPUTES. 

usually to punish the plaintiff, and through the example of 
his punishment to make him and others adopt certain rules 
in the conduct of business, which rules will in the end be 
beneficial to the economic position of the defendants. The 
connection between the boycott and the economic advance- 
ment being less clear to the judges, there is a tendency to 
regard the defendants in labor boycotts as persons who have 
intermeddled in the plaintiff's business without excuse. The 
distinction, in view of the real facts, is a narrow one, and 
the writer does not believe it will stand analysis. The boy- 
cott is an appeal to force, not an appeal to reason. The force 
is not physical force, but is none the less an attempt to coerce 
the will of third persons, so that they will act in a way preju- 
dicial to the plaintiffs' interests. The purpose of self- 
advancement in business or trade is one to be encouraged 
by the law, but it should not be sufficient to excuse harm to 
others through the coercion of their customers. This con- 
clusion is a criticism, not of the labor boycott cases, but of 
such decisions as Bowen v. Matheson, which have held a 
boycott undertaken by the rivals in business of the person 
boycotted as legal. 

In the boycott cases just discussed, as in the earlier case 
of Bowen v. Matheson, the person boycotted was a trader, 
using the word trader in its broad sense as including those 
who make and sell goods as well as those who merely sell. 
The harm of which the plaintiff complains in this class of 
cases is an injury to his trade. He has been deprived of a 
market for the sale of his goods. The case of Lucke v. The 
Clothing Cutters' Union, 77 decided by the Court of Appeals 
of Maryland in 1893, seems to have been the first case not 
affected by statute in which the boycott was directed by 
workmen against a workman for the purpose of depriving 
him of a market for his labor. 78 The plaintiff was a cutter 



77 77 Md. 396, 1893- 

78 The case of Mayer v. Journeymen Stone-Cutters' Association, 47 N. 
J. Eq. 519, 1890, is an earlier case, but that was decided under a statute. 
The New Jersey Act of 1883, Supp. Rev., page 774, par. 30, provides 
that " it shall not be unlawful^ for any two or three persons to unite, 
combine, etc., to persuade, advise or encourage by peaceable means any 
person or persons to enter into any combination for or against leaving 



TRADE AND LABOR DISPUTES. 493 

in the employ of Rosenfield Brothers; the defendant an. 
incorporated labor union. Rosenfield Brothers had every 
desire to retain the plaintiff in their employ, though they 
were under no contract to do so, when they received a 
letter from the secretary of the union stating that unless 
they discharged the plaintiff their shop would be declared a 
non-union shop. Solely in consequence of the receipt of this 
letter Rosenfield Brothers discharged the plaintiff. Had 
they not done so all persons connected with organized labor 
would have refused to buy their goods, and their other 
laborers, who were members of the union, would have been 
ordered out by the organization. The court was of opinion 
that these facts constituted a cause of action; in other 
words, that what we may call the fellow-workman boycott is 
illegal or actionable if harm results. It will be noted that 
the purpose of the defendants in establishing the boycott 
was to obtain a practical monopoly of the labor market in the 
cutting trade in the city. Through this monopoly they 
intended to improve their economic position as workers. 
The case decides that it is actionable for two or more per- 
sons, workers in a particular trade, in order to obtain a 
monopoly of the work in that trade for themselves, to 
threaten to leave or leave the employment of anyone who 
employs another, provided that other is actually deprived 
of employment as a result of acts done in pursuance of the 



or entering into the employment of any person or persons or corpora- 
tion." Vice-Chancellor Green held that under this act a number of 
laborers could combine to leave their employment if the employer hired 
any non-union man, and the refusal of an employer to employ a 
non-union man because of this threat did not give the non-union man 
a cause of action against the members of the union. Whether this 
case is now law in the jurisdiction, though the statute has not been 
repealed, may be regarded as doubtful. Vice-Chancellor Green declared 
in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 1894, a case of the boy- 
cott of a trader by laborers, that a boycott if resulting in harm was action- 
able, and that he had decided the earlier case as he did because of the 
statute. But in the more recent case of Frank v. Herold, 63 N. J. Eq. 
443, 1902, Vice-Chancellor Pitney declares that the Act of 1883 "renders 
innocent, as against the public, an act which, previous to its passage, 
was a misdemeanor and punishable by indictment." " It does not," he 
adds, "take away or in any wise affect any private rights which may 
arise out of the acts which are legalized by that legislation," pages 447-8. 
He furthermore intimates that if the Act of 1883 affected private rights 
it is unconstitutional. N 



494 TRADE AND LABOR DISPUTES. 

combination. The case has been followed in Plant v. 
Woods™ a Massachusetts case, and Erdman v. Mitchell, 80 a 
Pennsylvania case. Both of these cases, being cases in 
equity, stand for the further proposition, that a Court of 
Chancery has jurisdiction to restrain by injunction such a 
boycott. 81 Justice Holmes dissented in Plant v. Woods. He 
believed that the monopoly of the labor market of one trade 
by one union was a means by which the rate of wages in 
that trade could be materially advanced, and he thought 
that the purpose of the defendants in desiring a monopoly 
being justified by this fact, gave them a legal excuse for the 
harm which their acts inflicted on the defendants. 82 The 
courts in New York have also taken a position in regard to 
these fellow-labor boycotts which is at variance with that 
adopted in Maryland, Massachusetts, and Pennsylvania. 83 
The first case in that State in which the opinion is expressed 
that a laborer, boycotted by his fellow-laborers, has suffered 
no legal injury is Davis v. United Portable Hoisting Engi- 
neers. 84 In that case the plaintiff, who was a hod-hoisting 
engineer, asked that the defendants, the officers and members 
of a union, be restrained from in any manner preventing 
the plaintiff from obtaining employment. In the opinion 
of the majority of the court the plaintiff failed to show 
that he had ever been discharged as a result of the acts 
of the defendants. The only employer testifying in the 
case swore that he had only employed the plaintiff until he 
could obtain a union man, not that he had discharged him 
because of the threats of the union. Judge Patterson, how- 
ever, does say : " There can be no doubt that members 



79 176 Mass. 492, 1900. 

80 207 Pa. 79, 1903. It was also followed in New York in the case 
of Curran v. Galen, 152 N. Y. 33, 1897. This case has, apparently, been 
overruled by the case of National Protective Asso. v. Cumming, 170 
N. Y. 316, 1902, see infra. 

81 To the same effect see the English case of Giblan v. National Amal- 
gamated Labourers' Union [1903], 2 K. B. 600, Ct. of App. 

82 Page 505. 

83 There is also a case in the Appellate Court of Indiana, Clemmitt v. 
Watson, 14 Ind. App. 38, 1895, which is contra to Lucke v. Clothing 
Cutters' Union. But see Jackson v. StanHeld, 137 Ind. 592, 1893. 

84 28 App. Div. 396, N. Y., 1898. 



TRADE AND LABOR DISPUTES. 495 

of trade unions, as well as other individuals, have a right 
to say that they will not work with persons who do not 
belong to their organizations, and whether they say it 
themselves or through their organized societies makes no 
difference. They have a right by that method to secure 
employment for their own members." 85 Judge Rumsey 
dissented, because he believed that the coercion exercised by 
the defendants had caused the plaintiff's discharge, and that 
this coercion for the purpose of depriving another of employ- 
ment was unlawful. 86 Following the opinion of Judge Pat- 
terson, if not the actual decision in this case, the special 
term of the Supreme Court in Tallman v. Gallard 87 refused 
to issue an injunction pendente lite in a case in which the 
plaintiff set out that he had been discharged because of the 
threats of the defendants that unless his employer dis- 
charged him the defendants would bring on a general strike 
of the other employees. Judge Giegerich, quoting the sen- 
tence we have given from Judge Patterson's opinion in Davis 
v. Engineers, says : " Applying the foregoing principles to 
the case at bar, it is clear that the means used by the defend- 
ants were lawful." The same judge took a similar action 
in Reform Club of Masons and Plasterers v. Laborers' Union 
Protective Society. 88 The Court of Appeals, though by a 



399- 

"Page 399. He regards the English case of Allen v. Flood (1898), 
A. C 1, as having been decided on similar facts and as holding that one 
man is not liable to another, though he has caused that other's discharge 
by economic pressure on his employer. Judge Rumsey regards the 
English decision as erroneous. He was mistaken, however, in the nature 
of the decision in Allen v. Flood. Though the question discussed in 
our text was discussed in that case, under the view of the facts adopted 
by the majority of the House of Lords, the case merely stands for the 
obvious legal rule that a man who has not caused the discharge of 
another from his employment is not liable for the harm to him resulting 
from such discharge. See statements by members of the House in 
Quinn v. Leathern (1901), A. C. 495. The lower courts in England, 
when the decision in Allen v. Flood was first announced, interpreted 
it in the same manner as Judge Rumsey. See Huttley v. Simmons 
(1898), 1 Q. B. 181, also the modification made in the injunction issued 
in Lyons v. Wilkins, 78 L. T. Rep. 618, 1898, s. c. 67 L. J. Ch. 383. 

87 57 N. Y. Supl. 419, 1899. This decision and the opinion of Patterson, 
J., in Davis v. United Portable Hoisting Engineers, 28 App. Div. 396, 
1898, 397, just quoted, appears to be contra to the earlier New York 
case of Curran v. Galen, 152 N. Y. 33, 1897. 

88 6oN. Y. Supl. 388, 1899. 



496 TRADE AND LABOR DISPUTES. 

divided court, confirmed these cases in National Protective 
Association of Steam-fitters and Helpers v. Cumming. 89 In 
this case one McQueed was president of the plaintiff asso- 
ciation, an incorporated labor union. He brought the action 
for himself and the other members of his union against the 
officers and members of several allied unions connected 
with steam work in the erection of buildings, and probably 
with other building-trade unions. The complaint alleged 
that the defendants were empowered to* go* round to the 
different buildings in which their members were employed, 
and if they found any non-members working on the build- 
ing, to demand their discharge. That one of the members of 
the plaintiff corporation was engaged on a building when the 
defendants caused his discharge by threatening, that unless 
he was discharged they would order a strike of the members 
of the organizations they represented who were working on 
the building. Chief- Justice Parker, who wrote the opinion 
of the court, rests his decision on the absolute right of a 
man or body of men to work or not to work. From this 
principle it of course follows that the defendants in the case 
before him had a right to threaten to do what they had 
an absolute right to do. It will be noted that the basis of this 
decision in favor of the defendants is radically different from 
that expressed by Justice Holmes in Plant v. Woods. Justice 
Holmes starts with the proposition that to wilfully act so as 
to cause harm to another gives that other a right of action. 
He then finds in the purpose of the defendant a legal privi- 
lege or excuse. Justice Parker, on the other hand, lays 
emphasis on the existence of absolute rights and expressly 
disapproves of the growing tendency to regard motive or 
purpose as an element tending to determine the legal char- 
acter of an act. 90 The dissenting opinion of Justice Vann 
expresses still another way of deciding the question at issue. 
To him, as to Judge Sage in Casey v. Cincinnati Typo- 
graphical Union, 91 the element of coercion is the factor 
which makes the defendants' acts unlawful. 



9 170 N. Y. 315, 1902, aff. 53 App. Div. 227, 1900. 

Page 326. 

*45 Fed. 135, 1891, note 69. 



TRADE AND LABOR DISPUTES. 497 

The same conflict of opinion which appears to exist in 
these cases where laborers attempt to boycott laborers, also 
appears in the two reported cases in which the defendants, 
not being laborers, procured the plaintiff's discharge by- 
bringing economic pressure to bear on his employer. In 
Ray croft v. Tayntor 92 the plaintiff was employed by a 
person who had a license to work a quarry which he had 
received from the defendant, the superintendent for the 
owner of the quarry. The plaintiff and the defendant quar- 
relled, and as a result of this quarrel the defendant told 
the plaintiff's employer that he would revoke his license 
unless he discharged the plaintiff. The court held that 
the defendant had an absolute right to revoke or threaten 
to revoke the license without being liable for the result- 
ing harm to the holder of the license or anyone else. On 
the other hand, the Supreme Court of Illinois, in London 
Guarantee Company v. Horn, 93 seem to come to an oppo- 
site conclusion. In this case an insurance company made 
a contract with the plaintiff's employer to indemnify the 
employer from all loss by reason of claims for damages 
from any of his employees injured while in his employ. The 
plaintiff was injured and sued his employer. The insurance 
company by its contract with the employer became the real 
defendant in the suit. The plaintiff refused an offer of settle- 
ment on the part of the insurance company, and the latter's 
agent told the plaintiff's employer that unless he discharged 
him the insurance company would cancel the contract of 
insurance. The company had a right to do this on five days' 
notice, but whether the threat was to cancel at once or on five 
days' notice is doubtful. At any rate, it was effective : the 
plaintiff was discharged. The majority of the court held he 
had a good cause of action against the insurance company. 
Two judges dissented on the ground that the threat of 
the insurance company to cancel the contract with the plain- 
tiff's employer was to cancel it in five days, and this they 
had an absolute right to do from whatever motive. 



68 Vt. 219, 1896. 

206 111. 493, 1904, aff. 101 111. App. 355. 



498 TRADE AND LABOR DISPUTES. 

The method of approaching a question of alleged tort, 
which presumes that one is liable for harm which is the 
natural consequence of a wilful act, appeals to the writer. A 
discussion of the proper method of determining a doubtful 
question of torts is not, however, the object of this article. 94 
Assuming the method indicated to be correct, he cannot 
think that the desire for self-advancement through securing 
the monopoly of the labor market is no more a legal 
justification in the fellow- workmen boycott cases than the 
desire for self-advancement through the monopoly of the 
market for particular goods is an excuse for a trade boy- 
cott, or the adoption of a rule of employment desired by 
a union is an excuse for its members inaugurating a labor 
boycott against an employer who will not adopt it, even 
though its adoption will probably tend to the economic 
advancement of the laborers. In short, the writer believes 
that the position that a person should have a civil action for 
harm the result of a boycott is sound, and should be gener- 
ally applied to all the three classes of boycott so far con- 
sidered. Self -advancement alone should not be a legal ex- 
cuse for harm the result of a boycott, whether that self- 
advancement is worked out indirectly through monopoly or 
directly, as in the Illinois case just discussed. 

This is not saying, however, that there may not exist 
legal justifications for a boycott. An example of a legal 
justification is illustrated by the case of the Continental 
Company v. Board of Fire Underwriters, 95 a case decided 
by Judge, now Justice, McKenna. This was a trade boy- 
cott case. The defendants were companies engaged in fire 
insurance. They notified their agents that they must cease 
to represent the company in the association if they repre- 
sented the plaintiff company. An injunction to restrain 
this threat is denied, though the alleged act of threatening 
to refuse to deal with those who insured in the plaintiff 
company is declared illegal and restrained. 96 It is evident 

94 The writer has discussed this question in an article on, " The 
Closed Market, the Union Shop, and the Common Law," in the April 
number of the current volume of the Harvard Law Review. 

m 67 Fed. 310, 1895. 

86 Pages 312, 323. 



TRADE AND LABOR DISPUTES. 499 

that there is a legal justification for refusing to deal with 
an agent for the sale of one's goods who represents a busi- 
ness rival. 97 An agent is in a different position than a 
customer. He is supposed to push the business of his prin- 
cipal. In the insurance business one man may represent 
several companies, but whether the fact that he represents 
one company is or is not inimical to the interests of a 
rival company which he also wants to represent is for the 
rival company to determine. The case is not unlike the 
case of the employer who determines that for the good 
of his business his employees should not deal with a par- 
ticular store, because dealing with the store tends, in the 
opinion of the employer, to adversely affect the character of 
his employees as employees. Neither is the case unlike that 
of the laborer who refuses to work with another laborer 
because he believes him to be incompetent and therefore, 
owing to the character of their work, likely to jeopardize his 
life or adversely affect the character of his output. All 
these cases are boycott cases in the sense that economic 
pressure is brought on third persons to make them act in a 
way harmful to others ; but in each case those who inaugu- 
rate the boycott have a legal excuse for the harm done to 
the boycotted person. 

The earliest and the first case which we have discussed, 
Hunt v. Simonds, 98 was a case of trade strike; that is, 
the united refusal of two or more traders to deal with 
a third. It was not, however, until 1892 that a case in- 
volving an agreement among several employers not to em- 
ploy certain workmen came before a court. In Worthing- 
ton v. Waring" the plaintiffs, who were weavers, alleged 
that the manufacturers of Fall River had agreed among 
themselves not to employ anyone who, being an employee 
of one of them, had gone out on strike; that the plaintiffs 
had left the defendants' employ on strike, and the defend- 
ants had in pursuance of the agreement blacklisted them 
and sent their names to other manufacturers in Fall River. 

97 It may be possible to support the English case of Mogul S. S. Co. 
v. McGregor, 23 Q. B. D. 598 (1892), A. C. 25, on this ground. 
98 19 Mo. 583, 1854. 
99 157 Mass. 421, 1892. 



5<DO TRADE AND LABOR DISPUTES. 

The prayer of the petition was that such blacklists or other 
devices used for the purpose of preventing the plaintiffs' 
employment be withdrawn and destroyed. What benefit the 
plaintiffs could obtain by any possible action of a court of 
equity, their names having already been sent to other manu- 
facturers, parties to the agreement, is not clear. The court, 
while expressly refraining from dealing with the question 
whether the acts of the defendants constituted a cause of 
action, place their refusal to grant relief on the ground that 
the plaintiffs are attempting to enforce a mere personal 
as distinguished from a property right and that equity only 
protects rights of property. This ground, it is submitted, is 
hardly tenable. The reasonable expectation of a trader that 
he will be able to sell his goods to his old customers has been 
protected by courts of equity from the wrongful interference 
of third persons on the ground that a man's business repu- 
tation is incorporeal property. It would appear that the 
laborer's reasonable expectation of securing employment 
should, on the same ground, be equally entitled to the Chan- 
cellor's protection. A few years after the decision in Worth- 
in gt on v. Waring, the same court in the case of Plant v. 
Woods 10 ° protected by a decree in equity this right against 
what they regarded as the wrongful interference of fellow- 
workmen. Apart from the question of equitable jurisdic- 
tion, whether an agreement among several manufacturers 
to send each other the names of employees who go out on 
strike and to keep a blacklist of the same, is actionable if 
harm results to the striker has yet to be expressly decided. 101 
Judge Rogers in Boyer v. Western Union Telegraph Com- 

100 176 Mass. 492, 1900. 

101 In Mattison v. Lake Shore and South Mich. R. R. Co., 3 Ohio, Dec. 
Sup. and Com. Pleas, 526, 1895, the plaintiff was the discharged employee 
of the defendant. He set forth in his declaration that the defendant 
maliciously interfered with his rights to earn his living as a railroad 
employee by putting in force certain " blacklists" rules against him ; but 
he did not explain the nature of these rules, and one is uncertain 
whether he sued for a malicious discharge or a malicious persuasion of 
others not to employ him. The court overruled the demurrer of the 
defendants. In McDonald v. The Illinois Cent. R. R., 187 111. 529, 1900, 
the plaintiff did not allege any agreement not to employ him among 
several employers, or that he failed to get employment because of any 
action on the part of his old employer. The court sustained the defend- 
ant's demurrer. 



TRADE AND LABOR DISPUTES. 501 

pany 102 takes the position that where there is no contract 
between an employer and his men he may legally discharge 
them for any reason, and inform others, who inquire, the 
reason for the discharge. As he furthermore takes the posi- 
tion that there is no such thing as an illegal conspiracy to 
do a lawful act," 103 it is probable that he would consider an 
agreement among several employers to blacklist particular 
workmen as legal. 104 

The last form of strike, or agreement among several per- 
sons not to deal with another, to come before the civil courts, 
was the labor strike, the kind of strike to which the word 
itself is usually confined. 105 In Arthur v. Oakes, 106 a Fed- 
eral case arising in 1894, the receiver of a railroad secured 
from the circuit court 107 an injunction which Justice Har- 
land thought restrained the employees from quitting the 
service of the company in a body. He struck out this part of 
the injunction on the express ground that equity has no 
jurisdiction to force one man to remain in the personal ser- 
vice of another. Merely the jurisdiction of Chancery, not 
the substantive legal rights of the parties, was involved. 108 
Though the question of the liability for the harm done to an 

102 124 Fed. 246, 1903. Compare Piatt v. Philadelphia and Reading R. 
R., 65 Fed. 660, 1894. 

103 Page 248. . 

In England it has been held that an agreement among several con- 
tributors to a fund for the support of a clergyman, to discontinue their 
contributions, the purpose of the agreement being to get rid of the cler- 
gyman for what they believed to be the good of the parish, did not give 
the clergyman a cause of action, though, owing to the action of the 
defendants, he was obliged to resign from the parish. Kierney v. Lloyd, 
26 L. R. Ir. 268, 1889. 

104 The complainants set out in their bill that they were members of 
a union and that the defendants, officers of a company, had conspired 
to prevent their obtaining employment. The acts charged, however, 
were merely discharging anyone who belonged to a union, keeping a list 
of such persons, and showing such list to those who desired to see it. 

105 The case of Carew v. Rutherford, 106 Mass. 1, 1870, supra, is a case 
which grew out of a labor strike, but it will be remembered that the 
suit in that case was for damages for forcing the plaintiff by means of 
a strike to pay money he did not owe, not for damages for the result 
of a strike. 

106 63 Fed. 310, C. C. A., 1894. 

107 The report of this case in the circuit court will be found in 60 Fed. 
803, 1894, under the name of Farmers' Loan and Trust Co. v. North 
Pac. R. R. Co. 

108 Pages 319, 320. 



502 TRADE AND LABOR DISPUTES. 

employer by a sudden and prearranged cessation of work on 
the part of his employees has never come fairly before the 
courts, it may be assumed, that if the purpose of the strike is 
to improve the economic conditions of the laborers, or has 
something to do with their terms of employment, they are 
not liable for the resulting harm. Indeed, this assumption 
has been frequently made by our courts. 109 Whether the 
strikers would be liable if their purpose was a purely malic- 
ious one is doubtful. 110 It depends upon two questions: 
First, whether the purpose of an actor should be taken into 
consideration in solving questions of alleged tort; and, 
second, admitting that purpose should at least in some 
cases be taken into consideration, whether the act of sever- 
ing the relations of employer and employee by the latter 
or by the former should be treated as an act over which the 
purpose of the actor could have an effect on his legal liability 
for the consequent harm. These are questions which remain 
undetermined in our law and on which great confusion 
exists. 111 The typical case, however, is not the strike with 
the malicious purpose, but the strike with the economic pur- 
pose; that is, the advancement of what the strikers believe 
to be their own interests. This is not only true of the labor 
strike, but is also true of the trade strike discussed in the 
first part of this article, and the employers' strike which 
expresses itself in the blacklist or lockout. It may with a 
good deal of confidence be asserted, in spite of the absence 
of positive authority on many phases of the proposition, that 
two or more persons who agree not to have business rela- 
tions with a third are never liable to the third person for 
the harm resulting if their purpose is their own advance- 



109 For an example of such an assumption see Wabash R. R. Co. v. 
Hannahan, 121 Fed. 563, 1903, 570. Compare Allis Chalmers Co. v. 
Reliable Lodge, in Fed. 264 N. Y., 1901, 268. 

110 Compare the cases in which the courts have stated if they have not 
decided that one trader may refuse to deal with another trader irre- 
spective of his purpose or motive. 

111 The confusion in the trade and labor cases on these questions has 
been treated by the author in a recent article in the Columbia Law 
Review for February of the present year, entitled "Should the Motive 
of the Defendant Affect the Question of His Liability? — The Answer 
of One Class of Trade and Labor Cases." 5 Col. Law. Rev. 107. 



TRADE AND LABOR DISPUTES. 503 

ment, unless in severing their relations with him they break 
some contract or contracts. 

Down to the point which we have now reached in the 
development of the law we notice a sharp contrast in the 
way in which the law treats a strike and a boycott. The 
strike, at least for the purpose of economic advancement, is, 
from the point of view of civil law, legal. The boycott, on 
the other hand, for the same purpose has usually been con- 
sidered illegal. Laborers may combine to leave the service 
of their employer and he cannot recover from them damages 
for the resulting loss to him ; but if they leave him in order to 
compel him not to deal with a third person, then, though he 
may have no action against them, the third person has an 
action. Admitting this difference in the legal aspect of a 
strike and boycott, the most recent trade and labor cases have 
illustrated the difficulty of determining in some instances 
whether what looks likes a strike is not in reality a boycott. 
In Longshore Printing Company v. Howell, 112 for instance, 
a case arising in Oregon in 1894, a union declared a strike 
at A's works. Members of the union, employees of A, had 
they refused to strike would have been expelled from the 
union. If the cessation of labor on the part of all those who 
left A's employ was voluntary or merely the result of persua- 
sion by argument all parties admitted that A was not entitled 
to have the injunction he asked for to restrain the order to 
strike ; but, if the order to strike was obeyed by some of the 
laborers because of fear of economic harm, then there was, 
not merely a strike, but a boycott of the plaintiff. In this 
case the court did not think there was enough evidence of 
coercion of individual members to warrant their issuing an 
injunction. In the New York case of Coons v. Chrystie 113 
however, the officers of a union were restrained from declar- 
ing a strike at the plaintiff's factory, the court believing that 
the employees would not strike unless some form of coercion 
accompanied the order. In Wabash Railroad Company v. 
Hannahan 114: the court on similar facts came to an opposite 

112 26 Ore. 527, 1894. 

118 53 N. Y. Supl. 668, 1898. 

114 121 Fed. 563, 1903. 



504 TRADE AND LABOR DISPUTES. 

conclusion. The mere fact that a number of laborers agree 
that they will strike when told to do so by their president or 
other officer is not, of course, proof that those who strike 
as the result of such an order are coerced. It may merely 
indicate that they have determined for their own benefit to 
follow the advice of another. Coercion in such cases is a 
matter of fact to be determined by ascertaining what would 
happen to the individual workman if he refused to obey the 
so-called " order to strike." If the result to one who refused 
to obey would be physical or economic harm, then there is 
coercion, if the threat has in fact affected the action of some 
of those who leave the plaintiff's employ. In Boutwell v. 
Marr, 115 a Vermont case, the same question arose out of 
what was on its surface merely a trade strike. The members 
of an association of granite manufacturers composing ninety- 
five per cent, of the trade passed a rule that no one should 
have his granite polished by a person not a member of the 
association on the penalty of a fine of fifty dollars. In con- 
sequence of this resolution members of the association 
refused to send their granite to A. A sued the members of 
the association for a conspiracy to injure, and recovered on 
the ground that a boycott exists when unity of action is 
secured by threats. The fine of fifty dollars constituted, in 
the opinion of the court, such a threat. It may be 
presumed that the court thought the persons who had 
been sending their granite to the plaintiff refused to do 
so because of the threat of the fine, for, of course, a 
plaintiff cannot recover on the ground of boycott unless 
there is a casual connection between the alleged coercion of 
third persons and the harm of which he complains. 116 The 
conclusion from these cases is, that merely calling something 



115 42 Atl. 607 Vt, 1899. 

110 Thus in Downes v. Bennett, 63 Kas. 653, 1901, a case similar in all 
respects to Boutwell v. Marr, except that there was no definite sum 
mentioned in the rules of the association as a fine for a member dealing 
with the plaintiff, the plaintiff asked for an injunction to restrain the 
members of the association, by threats of fine or expulsion from the 
association, preventing the individual members from dealing with the 
plaintiff. The court refused the injunction because the plaintiff failed 
to prove that the fine was the cause which induced the members not to 
deal with the plaintiff. 



TRADE AND LABOR DISPUTES. 505 

a voluntary cessation of work or trade relations does not 
make it voluntary, and if the severence of business relations 
is not voluntary on the part of all participating, it may be 
treated by the courts, not as a conspiracy to do a lawful act — 
that is, sever business relations — but a conspiracy among 
some of those who strike to do an unlawful act — that is, 
coerce others to sever their business relations with the 
plaintiff. 

Another class of problems in tort arising out of trade 
and labor controversies is due to the fact that in some 
jurisdictions if A persuades B by argument not to deal with 
C this gives C a right to recover from A unless A has a legal 
excuse — such, for instance, as a purpose to advance himself. 
Where the officers of" a labor union have been selected by the 
members to tell them when it is for their interest to strike, 
they are not liable if, for a purpose germane to their appoint- 
ment, they order a strike. But suppose the court should think 
that the officer of a union urged Cs employees to join his 
union merely for the purpose of ordering them to leave Cs 
employ, then the mere fact that Cs employees joined the 
union first and struck afterwards does not alter the fact that 
a stranger to C and his employees has interfered and per- 
suaded the employees to leave. It is this conception that the 
officer of a labor union is an interloper, a conception 
which sometimes corresponds with the fact, which causes 
such a decision as Old Dominion Steamship Company v. 
McKenna 117 where the company recovered in an action at 
law against the members of the board of the executive coun- 
cil of a union for persuading the company's employees to 
strike. 

Another possible class of difficulties arising out of the 
rule of law which holds that he who persuades one man 
not to deal with another must have a legal excuse, is sug- 
gested by a case decided in Minnesota in 1900, Ertz v. Pro- 
duce Exchange. 118 In that case the plaintiff alleged that the 
defendants, the members of a produce exchange, conspired 



30 Fed. 48, 1887. 
79 Minn. 140, 1900. 



506 TRADE AND LABOR DISPUTES. 

to refuse to deal with him; and one defendant, the produce 
exchange, " did maliciously solicit and procure from all 
its co-defendants, and each of them, and from many other 
persons to the plaintiff unknown, an agreement not to sell 
to or buy from the plaintiff." 119 The defendants demurred. 
The Supreme Court affirmed the action of the lower court in 
overruling this demurrer. It will be noted that the plaintiff 
had alleged that the defendants or one of them had per- 
suaded third persons not to deal with him. The court in 
effect takes the position that to persuade a third person not 
to deal with another is a civil wrong to that other if harm 
results, unless he who persuades has some legal excuse. The 
difference between persuading by argument persons to con- 
spire with you not to deal with another and conspiring to 
persuade third persons not to deal with another might have 
been considered. But the court treat the case as raising the 
same kind of a question as the earlier case of Bohn Manu- 
facturing Company v. Hollis, 120 in which there was a mere 
agreement between several persons not to deal with the 
plaintiff. The two cases are distinguished on the ground, 
that in the earlier case the defendants had a legal excuse 
in the fact that they were seeking their own economic 
advancement, while in the latter the demurrer was in effect 
a contention that the defendants did not need any excuse. If 
the act of persuading a person not to deal with a third needs 
a legal justification, it is immaterial whether the person per- 
suaded is asked to enter into an agreement with- the per- 
suader to persuade others. This is the position which is 
practically taken by the court in this case. It appeals 
strongly to logic and common sense. If correct, however, 
it is necessary to explain and qualify the usual assertion, 
which as we have seen has been made in many of the trade 
and labor cases, 121 namely, that in the law of private wrongs, 
there is no such thing as a conspiracy to do a rightful thing. 
A may cease to deal with C for a good reason, a bad reason, 
or no reason at all, and the law will perhaps give C no 

119 Pages 142, 143. 

120 54 Minn. 223, 1893, supra. 
m Supra, note 9. 



TRADE AND LABOR DISPUTES. 507 

remedy; to maliciously persuade another, however, is quite 
another matter. Yet how can we conceive of an agree- 
ment between two or more persons not to deal with a third 
without supposing that the parties to the agreement or some 
of them persuaded the others or each other to enter into it ? 
It follows, therefore, that while A may not have an action 
against B, though B with a malicious purpose refuses to 
buy or sell to him, A may have an action against several 
who with the same purpose combine to refuse to deal with 
him ; not because of the combination, but because combina- 
tion presupposes mutual persuasion for its creation and 
continuation. At any rate, one can hardly read the opinion 
in Ertz v. Produce Exchange without realizing that the 
decision would have been the same even though the plaintiff 
had not alleged that the conspirators had persuaded third 
persons not in the conspiracy to refuse to deal with him. 

In the Johnston Harvester Company v. Meinhardt 122 it 
was held, as we have seen, 123 that for the purpose of self- 
advancement one man may offer money or other advantage 
to another to persuade that other from dealing with a third 
without being liable to the third person for the resulting 
harm. All underselling in the process of competition in 
business would be impossible if self-advancement was not 
an excuse for the harm done to a rival trader by under- 
selling. But suppose the underselling is not for any legiti- 
mate trade purpose, but merely for the purpose of doing 
harm to another? This question came before the Circuit 
Court of Appeals of the Eighth Circuit in the case of Passaic 
Print Works v. Ely & Walker Dry Goods Company. 124 " The 
plaintiff set out in his declaration that the defendants were 
underselling him, not because they were desirous of advanc- 
ing their own trade, but for the purpose of injuring the plain- 
tiff's. The demurrer of the defendant was sustained, the 
opinion of the court being written by Judge Thayer, who 
expressly follows the position apparently adopted by sev- 
eral of the judges in the House of Lords in the case of Allen 

122 60 How. Pr. 168, N. Y., 1880. 

123 Supra, page 479. 

124 105 Fed. 163, C. C. A., 1900. 



508 TRADE AND LABOR DISPUTES. 

v. Flood, 125 that prima facie a lawful act cannot be made 
unlawful by the motive which prompted it. Judge Sanborn 
dissented because he took the position that as the defend- 
ant's act had caused the plaintiff harm, he was liable for that 
harm or not according to the purpose with which he acted. 
The exact question raised in the case is new, and it will take 
several decisions to settle the law. An opinion as to the 
correct decision depends on whether the motive or purpose 
of the actor should be considered in this class of cases. The 
writer believes that it should be considered. This question, 
however, he has discussed at length elsewhere. 126 Whatever 
opinion may be had in regard to this disputed question, there 
would appear to be no doubt that in a large number of cases 
the motive of the actor has determined his liability for the 
harmful consequences of his act, and that the general trend 
of authority in the trade and labor cases is in favor of the 
view taken in the dissenting opinion in Passaic Print Works 
v. Ely & Walker Dry Goods Company} 21 In the words of 
Lord Coleridge, in speaking of the very question raised later 
in the Passaic Print Works case, " It is too late to dispute, 
if I desired it, as I do not, that a wrongful and malicious 
combination to ruin a man may be ground for such an action 
as this." 128 

William Draper Lewis. 



125 (1898) A. c. 1. 

128 The article in 18 Har. Law Rev. 444, referred to supra, note 94, 
and an article in 5 Col. Law Rev. 107, " Should the Motive of the 
Defendant Affect the Question of His Liability?" 

127 See the discussion of Walker v. Cronin, supra, and the article by 
Prof. Ames in 18 Harv. Law Rev. 411, referred to supra. 

128 Mogul S. S. Co. v. McGregor, 21 Q. B. D. 544, 1888, 553- 



LIBRARY OF CONGRESS 

027 292 911 7 



Si 

ililil 

B9F 



WM 



^lil^^lHIi 






il 



InS En 

■■P 

Hi Hh 

m RI 

NHHI 

Wmm HI SB?!] 

InHraGslB 



™ff 



ilJffiHlSIIP 



